Natural Resources Defense Council v. EPA

On motions to hold the EPA Administrator in contempt for failure to comply with the court's previous order in this case, 4 ELR 20204, the Fifth Circuit Court of Appeals affirms EPA's use of a tall stack "credit" for dispersion effects in approving the Georgia implementation plan. The court reiterates its earlier holding that the Clean Air Act permits dispersion enhancement techniques such as tall stacks only if (1) emission limitation regulations included in a state implementation plan, standing alone, are sufficient to attain applicable federal ambient air quality standards, or (2) it is demonstrated that emission limitations sufficient to meet the standard are unachievable or infeasible, and that the state has required the maximum degree of emission limitation achievable. However, the court finds that the Administrator, in determining upon re-evaluation that the Georgia sulfur dioxide emission limitation requirements standing alone are adequate to achieve the applicable air quality standards, did not act arbitrarily in giving full credit for stack height to sources whose tall stacks were in existence, under construction, or subject to binding contracts when the plan was initially filed. EPA was similarly justified in granting partial credit for those stacks contracted for after the plan was filed but before the court's initial ruling in this case. That decision, which rejected dispersion enhancement as an alternate control strategy to emission limitation, cannot be applied retroactively, and EPA's approach represents an equitable way of recongizing expenditures made before tall stacks were judicially disapproved. Nor can the formula for partial credit be deemed arbitrary, since the figure used by the Agency is based on the median stack height in the power industry prior to passage of the Clean Air Act.